The Electoral Count Act of 1887 (ECA) is 809 words in 10 long and confusing sentences describing how Congress is meant to certify the election of a U.S. president. It needs amending.
The law was passed after the disputed 1876 election in which Republican Rutherford B. Hayes defeated Democrat Samuel J. Tilden by a single Electoral College vote and backroom deal. That year, three states, Florida, Louisiana and South Carolina, sent competing slates of electors to Congress, both major parties claiming to have won those states.
Close and contentious elections followed in 1880 and 1884, and Congress decided it needed to do something to formally establish procedures and keep the transfer of power orderly.
Clearly, it’s no longer working.
Now, Congress is working to clarify the law in two important ways.
First, the role of the vice president. Taken at face value, the ECA intends the vice president to simply open, count and announce the results of state elections. But the language is vague enough that, leading up to Jan. 6, 2021, enterprising interpretations were making the case that the vice president was meant to open and certify results only from those states he deemed legitimate.
That interpretation would essentially give a sitting vice president authority to choose the next president, which was obviously not the intent of Congress in 1887. The ambiguity must be removed.
Second, Congress should raise the barrier for challenging certification. Currently, it takes only a pair of elected officials, one from each house of Congress, to halt proceedings. Lawmakers are considering a higher number, up to one-third of Congress. And they’re considering establishing a list of valid grounds for bringing an objection. Hopefully, “I read a tweet about a podcast about an article on BuzzFeed” isn’t one of them.
So far, it appears there are two groups working on separate bills. One is Democratic, and one is bipartisan, led by Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va.
There is plenty of support on both sides of the aisle. Sens. Amy Klobuchar of Minnesota and Dick Durbin of Illinois are leading the Democratic bill. Conservative commentator David French of National Review has voiced strong support among other conservatives.
It’s important that we get this right to help prevent a rerun of last year’s debacle. As Rebecca Green, co-director of the election law program at William & Mary Law School, told ABC News, “There’s enough focus now on the ambiguities of this statute that if it isn’t Donald Trump in 2024, you could easily imagine a number of other actors taking a page from his playbook.”
The election of 1876 was resolved by an agreement called the Compromise of 1877, which turned the White House into a bargaining piece. Democrats conceded the election to Hayes in return for the withdrawal of federal troops from Southern states, and the end of Reconstruction.
Congress should reform this law and affirm that America has progressed beyond the point where we use our highest elected office like a casino chip. The president is chosen by the will of the people, not political parley.
